DECEIVED
THOMAS JORLING 414 North Hemlock Lane Williamstown, MA 01267
JUN 21 2016 , M: OF MA ATTORNEV ^tNTR/U. MASSACHU8E1TU aiVfSiOh
Honorable Maura Healey Attorney General. Commonwealth of Massachusetts Boston, Massachusetts attention: Hon. Margaret Hurley Municipal Law Unit Office of the Attorney General 10 Mechanic St. Suite 301 Worcester, MA 01608-2417 RE:
Williamstown Zoning Bylaw Amendment Annual Town Meeting, May 17, 2016
Dear Attorney General:
On May 17, 2016, the Town of Williamstown adopted an amended zoning bylaw submitted to the town meeting by citizen petition. This bylaw is now pending your approval.
This letter is submitted to you to bring to your attention a provision in the bylaw regarding a Conservation Restriction. The proposed bylaw would amend part 70 of the code of the Town of Williamstown to add a paragraph F (7) to the code.
Conservation Restrictions in the Commonwealth are governed by sections 31 to 33 of chapter 184 of the General Laws. Among other requirements. Conservation Restrictions to be valid require approval by the Secretary of Energy and Environmental Affairs of the Commonwealth of Massachusetts.
This letter constitutes a request that you disapprove the Conservation Restriction provision in the town of Williamstown zoning bylaw that has been submitted for your approval. Based on the
specific provisions of the Home Rule Amendment to the Constitution, a town, in a zoning bylaw, cannot establish conditions in a Conservation Restriction that are not consistent with the legal requirements of Conservation Restrictions established by the Commonwealth of Massachusetts. The Home Rule Amendment to the Constitution, Mass. Const, Art. LXXXIX, § 6 only allows a town to adopt, amend or repeal a by-law "which is not inconsistent with the Constitution or laws enacted by the General Court." MGL c 184 § 31-33 are such laws.
Specifically, the zoning bylaw pending before you attempts to allow activities and uses prohibited by the Commonwealth on lands subject to a Conservation Restriction. These uses in the pending zoning bylaw include among others: cutting, removing or otherwise destroying trees and constructing photovoltaic structures, geothermal heating and cooling structures and other purposes. Allowing these uses on lands subject to a Conservation Restriction is contrary to the laws and practice of the Commonwealth of Massachusetts and its Department of Energy and Environmental Affairs. In order for approval by the Commonwealth, lands subject to Conservation Restrictions are to be maintained in perpetuity for conservation purposes in a natural scenic and undeveloped condition and to prevent any use or change that would materially impair or interfere with its conservation and preservation values. Among the prohibited acts and uses are constructing, placing or allowing to remain any temporary or permanent building or other temporary or permanent structure or facility on above or under such lands. Also prohibited is the cutting removing or otherwise destroying trees, grasses or other vegetation.
Thus, under the laws of the Commonwealth those portions of the Town's pending zoning by-law that attempt to define a Conservation Restriction contrary to State Law must be disapproved. Simply put, the purposes and objectives of the Commonwealth in regulating the uses of land subject to Conservation Restrictions cannot be abridged or altered in a town zoning bylaw.
This letter is written to protect the integrity of the law and practice of the Commonwealth of Massachusetts regarding Conservation Restrictions. Your disapproval would clarify that it is not appropriate for a town zoning bylaw to attempt to regulate uses of land subject to Conservation Restrictions in ways that are inconsistent with the laws of the Commonwealth. Attempting to define Conservation Restrictions in a zoning bylaw contrary to MGL c 184 §§ 31-33 is not an appropriate, nor legal exercise of the zoning authority of towns. It would establish an extremely unwise precedent to allow the many towns of the Commonwealth each to establish their own definitions of Conservation Restrictions and therefore must be disapproved.
Prof. Environmental Studies, Williams College, ret. Former Commissioner Department of Environmental Conservation, NYS
Emeritus Professor William Moomaw Environment and Resource Policy, The Fletcher ment and Environment Institute,Tufts University
cc: Honorable Matthew A. Beaton Secretary, Executive Office of Energy and Environmental Affairs 100 Cambridge St. Suite 900 Boston, MA 02114
